Patient mobility,the EU Charter's ‘right to health care’,and Member State competence: Towards a new role for fundamental rights

A. Legislative overview

Before analysing how the case law has moulded the patient entitlements provided under the SSR and PRD, it is first necessary to outline how that legislation operates on a textual level. EU law provides one framework governing unplanned healthcare arising while one is in a Member State (MS) other than their MS of affiliation, ¹⁵ and another framework for travelling abroad with the purpose of receiving planned hospital treatment. ¹⁶ This discussion focuses on the latter. As shorthand, the MSs implicated by cross-border patient mobility are presently termed the ‘home MS’ (State of affiliation) and ‘host MS’ (State of treatment).

Three sources of EU law apply here – the SSR, the PRD and in rare cases falling outside the legislation's scope, Article 56 of the Treaty on the Functioning of the European Union (TFEU). ¹⁷ These sources operate alongside one another, yet their rules differ.

If someone meets the conditions defined under their home MS's law to be entitled to healthcare benefits domestically, they are an ‘insured person’ within the meaning of the SSR and PRD. ¹⁸

Under the SSR, if insured persons seek planned treatment in another ‘host’ MS, they must prima facie obtain authorization from their home MS's national health insurance fund. ¹⁹ Patients alone cannot decide.

With SSR-based authorization, insured persons may access benefits-in-kind healthcare abroad as though they were insured under host MS law, and subsequently be reimbursed those healthcare costs by their home MS, ²⁰ regardless of whether they exceed the amount that would have been spent had the treatment been delivered domestically. ²¹ Accordingly, home MSs risk greater financial liability by granting SSR authorization.

Crucially, however, home MSs cannot refrain from giving SSR-based authorization if, first, the treatment sought is covered by that home MS's list of covered benefits as defined in national legislation and, second, the patient cannot be delivered that treatment domestically within a ‘medically justifiable’ time-limit. ²²

The PRD codified the Article 56 TFEU case law on cross-border healthcare. ²³ Notably, the PRD does not mirror the SSR's prior authorization provisions, instead having a basal rule permitting mobility and reimbursement without prior authorization, provided that treatments sought are covered under the home MS's benefits list. ²⁴ Prior authorization hurdles are only permissible when treatments either involve risks to the patient or populace, ²⁵ arouse serious concerns regarding the ‘safety of the care’ abroad ²⁶ or, more commonly, involve overnight stays in host MS hospitals, potentially jeopardizing the MS's ability to provide ‘sufficient and permanent access to a balanced range of high quality treatment’ and to ‘control costs’ and resource wastage. ²⁷ PRD-based authorization therefore always requires justification.

Nevertheless, the way both SSR and PRD-based authorization requirements are framed is not profoundly different. Under the SSR's predecessor, ²⁸ prior authorization was deemed restrictive of free movement since it potentially deterred patients from seeking healthcare services elsewhere, ²⁹ meaning they required justification under the pre-Lisbon equivalent to Article 56 TFEU. This essentially aligned both avenues to treatment. There are of course some remaining differences. Because SSR-based reimbursement can increase the home MS's financial burden, the justifications available for SSR-based authorization requirements include maintaining the ‘financial balance’ of the social security system. ³⁰ This ‘financial balance’ defence is logically unavailable for PRD-based authorization refusals, ³¹ since PRD-based reimbursement never exceeds the sum actually spent on treatment, nor the amount that the home MS would have paid had the treatment been delivered domestically. ³²

From that summary, there are two identifiable barriers to exercising this cross-border entitlement, with a third arising from the EU's limited healthcare competence. First, patients have no free-standing right to cross-border treatments if those treatments are not covered under home MS benefits lists. The legislative scheme widens the number of venues in which treatment might be received, rather than expanding the variety of treatments covered. ³³

Second, domestic authorities can and often do impose authorization requirements before patients may ‘access’ and ‘benefit from’ planned cross-border care. Reimbursement may be refused if treatment is obtained abroad before receiving authorization. ³⁴ SSR-based prior authorization rules can rely upon the powerful ‘financial balance’ justification, and even the PRD's general rule against prior authorization has exceptions.

Third, EU competence regarding the ‘protection and improvement of human health’ is constitutionally limited to merely supplementing MS power, ³⁵ with national authorities bearing primary responsibility for defining healthcare policy, resource allocation and delivering medical services. ³⁶ This limitation relates to concerns about the principle of ‘solidarity’ uniting patients insured under, and paying into, the same system, since cross-border patient movement could potentially impact upon resources in both the home and host MSs. ³⁷ This underscores a tension between individualist patient mobility interests and communitarian hospital-planning interests, ³⁸ especially considering budgetary constraints. ³⁹

However, section 2 now demonstrates that the CJEU's development of four dimensions to this entitlement has facilitated cross-border mobility, enhancing patients’ ability to ‘access’ and ‘benefit from’ treatment abroad in line with Article 35 CFREU. This expansion has occurred without rendering those three barriers inoperative, preserving both MS competence in healthcare and the ‘solidarity’ principle. This is because patient entitlements still operate under conditions set by national law, with national authorities enjoying discretion when assessing patient applications. In other words, the hurdles remain in place, but the crossbars have been lowered to favour the patient. The result, summarized in section 2.F, is essentially a ‘right to effective and speedy medical treatment’ infused with Article 35 CFREU's fundamental rights logic. ⁴⁰

Four dimensions to this cross-border entitlement have unfolded in the CJEU's case law, all of which supplement Article 35 CFREU's ‘access’ and ‘benefit’ elements in separate ways. Section 2.B first argues that the case law has broadened the ‘medical justifiability’ assessment, meaning that despite this enquiry's primarily ‘objective medical’ nature, ⁴¹ the patient's characteristics must nevertheless be considered in a wide sense and proportionately balanced against other circumstances in authorization decisions, which facilitates the patient's ability to ‘access’ cross-border care.

Second, in light of how ‘benefitting’ from treatment indicates an amelioratory effect, section 2.C suggests that Geraets-Smits ⁴² and Elchinov, ⁴³ read alongside the PRD's ‘good quality care’ principle, ⁴⁴ have indirectly encouraged MSs to improve the effectiveness of treatment methods accessible under their benefits lists.

Third, regarding treatment ‘access’, section 2.D observes that following Petru, ⁴⁵ if home MSs undertake to cover particular treatments in their benefits lists, those treatments must either be domestically available in a real sense, or else cross-border treatment must be authorized when medically necessary.

Finally, section 2.E recognizes that post-A v. Veselības ministrija, ⁴⁶ another dimension to the jurisprudence now requires access to cross-border care to meet standards of equality, in turn allowing cross-border patients to exercise a degree of choice when a case implicates fundamental ethical elements of their identity. ⁴⁷

B. A wide and proportionate assessment of patient need

EU law's proportionality principle is so pervasive that there are ‘few areas…if any at all’ where it is not relevant. ⁴⁸ The principle constitutes a ‘market integration mechanism’ to scrutinize MS actions which either impede the fundamental freedoms or implement EU law in a manner which is unduly restrictive for individuals. ⁴⁹

Admittedly, the PRD uses healthcare-centric terminology rather than the language of free movement. ⁵⁰ However, the PRD's legal basis was Article 114 TFEU, ⁵¹ and it refers extensively to the Article 56 TFEU case law. ⁵² The SSR, meanwhile, refers to the free movement of persons. ⁵³ Accordingly, proportionality naturally permeates the patient mobility legislation, as Geraets-Smits confirmed. ⁵⁴

For present purposes, ‘proportionality’ in assessing patient needs under the ‘medically justifiable’ test ⁵⁵ means home MS authorities must examine all the patient's circumstances when assessing authorization applications, going beyond purely ‘objective medical’ criteria. ⁵⁶ This breadth fulfils Article 35 CFREU's allusion to patients’ ability to ‘access’ and ‘benefit from medical treatment’ in two aspects. The first aspect concerns how MSs must assess patients’ applications generally. The second relates to how in urgent circumstances specifically, MSs may be required to waive their authorization requirements, provided the other condition demanding that treatments be covered under their domestic benefits lists is met.

As regards the first aspect, the SSR's predecessor required authorization to be granted if treatments could not ‘be provided for the person concerned within the territory of the Member State in which he resides’. ⁵⁷ This was later interpreted to require authorization if home MSs could not provide the same or ‘equally effective’ treatment ‘without undue delay’. ⁵⁸ In Elchinov, the CJEU later observed that ‘all the circumstances’ of each case must be considered, including the patient's ‘degree of pain’, their condition's ‘nature’, their ‘medical history’, and their condition's potential impact upon their ability to undertake a professional occupation, though this list was not exhaustive. ⁵⁹ This professional capacity point implies that the patient need assessment should encompass socioeconomic factors beyond purely medical factors.

From one perspective, this holistic approach is contradicted by the codifying legislation, since domestic treatment no longer needs to be available ‘without undue delay’ to justify refusals of authorization, but instead within a ‘medically justifiable’ time frame. ⁶⁰ Moreover, the above-mentioned wider summary of factors came from Elchinov, which concerned the former Regulation 1408/71. The more recent A decision, involving the current SSR, omitted socioeconomic factors and emphasized the primarily medical nature of the assessment. ⁶¹ This, however, does not render all non-medical criteria irrelevant.

Indeed, the CJEU did not outwardly deny the importance of socioeconomic factors under the SSR patient need assessment. It simply stated that one's ‘personal choice’ for treatment abroad, motivated by religious belief, was irrelevant to whether domestic treatments were equally medically effective. ⁶² There are three reasons why socioeconomic factors remain relevant.

First, old-law cases are still relied upon in A, ⁶³ indicating the continuing relevance of the wider analytical approach. The CJEU even uses the pre-PRD language of treatment being provided ‘in good time’ alongside the contemporary language of ‘medical justifiability’. ⁶⁴

Second, the ‘professional’ factor originated in the Treaty-based case law – upon which the PRD built – and was subsequently applied to Regulation 1408/71 – upon which the SSR built. Since the treatment pathways therefore share ‘an equal footing’, ⁶⁵ a common historical basis, and common requirements like comprehensively assessing the patient's historic, current and probable future condition, ⁶⁶ this homogeneity has arguably carried through into the new law, favouring a wider reading of patient need.

Third, and most significantly, although the CJEU in A did not mention this factor, the Advocate General (AG) did. Indeed, AG Hogan said the requirement to consider an applicant's ‘current state of health’ implicitly demands consideration of the nature of the patient's condition, and whether its nature would frustrate that person's ability ‘to carry out a professional activity’. ⁶⁷ The most probable explanation why the CJEU did not analyse this was because the patient was a minor with no professional engagements, meaning it was factually irrelevant. ⁶⁸ AGs, unlike the CJEU, are normally better positioned to perform thorough exegeses of principles incidental to a given case. ⁶⁹ Moreover, if the pre-existing legal position favouring the relevance of socioeconomic factors, as AG Hogan described, had been changed, one would expect the CJEU to have clearly stipulated such a change in the law's interpretation. The CJEU proclaimed no such change. Consequently, the SSR's and PRD's ‘medically justifiable’ assessment still requires consideration of both medical and non-medical factors, fleshing out Article 35 CFREU's ‘access’ element by facilitating the grant of authorization.

As regards this dimension's second aspect, prior authorization requirements are now softened wherever a patient's circumstances are particularly ‘urgent’. ⁷⁰ Indeed, in Elchinov, the Bulgarian applicant applied under the SSR's predecessor for eye treatment in Germany, ⁷¹ then travelled for treatment before officially receiving authorization, due to a precipitous decline in his health. ⁷² Reimbursement was retrospectively denied on two bases, first that Bulgaria's benefits list did not cover the treatment, and second that he had not waited for prior authorization. ⁷³

The CJEU's response to this second ground was that a blanket prior authorization rule obviously ‘deprives’ insured persons of reimbursement they might otherwise have received where those persons, out of urgency, could not reasonably have been expected to await a response to their applications. ⁷⁴ Granting reimbursement in such cases, said the CJEU, is unlikely to compromise hospital-planning or disrupt the healthcare system's financial balance. ⁷⁵ This left Bulgaria's restriction without justification, meaning it contravened EU law. ⁷⁶

Some argue that the CJEU here was wrong to assume that waiving authorization requirements in urgent cases was unlikely to have financial or hospital-planning implications. ⁷⁷ Cross-border treatment will arguably be sought whenever a patient's needs become urgent, and the requirement to grant authorization if domestic treatment is unavailable within a ‘medically justifiable’ time itself suggests that many cases will arise on urgent footings. ⁷⁸ In turn, this creates concerns of ‘benefit tourism’, notwithstanding the lack of evidence for such concerns. ⁷⁹

In reality, though, any opening of the floodgates will occur more in theory than reality. ⁸⁰ Indeed, patients seldom travel abroad for treatment, with cross-border patient numbers hardly having changed since the PRD's implementation period ended. ⁸¹ Instead, this development pragmatically and humanely recognizes how anyone whose condition is severely deteriorating might understandably seek the most expeditious way to address it. Accordingly, even if Article 35 CFREU was not substantively invoked here, Elchinov softened the authorization barrier to accessing cross-border healthcare, aligning the SSR and PRD with the Charter's generalized ‘access’ and ‘benefit’ themes.

C. Effectiveness of treatment

Article 35 CFREU's reference to ‘benefitting’ from treatment implies a degree of treatment quality. This does not mean that cross-border patients may legally demand particular treatments if those methods are not textually covered by their home MS's benefits list. Like the SSR and PRD, ⁸² the Charter's ‘right to healthcare’ falls squarely within the ‘conditions established by national laws’. ⁸³ Instead, this dimension describes the de facto combined result of two separate duties which – following the CJEU's decisions – home MSs must observe when assessing applications. These two duties are termed the ‘comparison’ and ‘inclusive interpretation’ duties.

Woven throughout these duties are the ‘quality’ concepts now enshrined in the PRD, which conceives of ‘quality’ first in terms of access to ‘safe and high-quality cross-border healthcare’, and second as ‘good quality care’. The former represents the legislation's foundational aspiration, ⁸⁴ whereas the latter is an ‘overarching value’ ⁸⁵ reinforcing MS duties to provide healthcare under the PRD. ⁸⁶ Despite being outside the legislation's substantive provisions, ⁸⁷ such principles may guide how MSs interpret their own instruments transposing the PRD. ⁸⁸ These ‘quality’ principles have the potential to augment treatment effectiveness in cooperation with the comparison and inclusive interpretation duties. This dimension therefore nudges the focus towards accessing high-standard healthcare rather than accessing healthcare simpliciter, resonating with the Charter's assurances of a ‘high level of human health protection’ vis-à-vis EU policymaking. ⁸⁹

First, regarding the comparison duty, where MSs require treatments sought by patients to be deemed ‘normal’ according to medical opinion before granting authorization, EU law requires ‘normality’ to be determined based on ‘what is sufficiently tried and tested by international medical science’. ⁹⁰ The rationale is that if national authorities only consider what national professionals deem ‘normal’, this would baselessly discriminate between domestic opinion and international science. ⁹¹ Without more, authorization cannot be refused merely because domestic doctors are unfamiliar with particular treatments, especially when international science proves their effectiveness. The MS power to define eligibility conditions for cross-border authorization is therefore subject to an EU law requirement of procedural non-discrimination. ⁹²

This procedural duty to examine treatments through the double lenses of national opinion and international research will inevitably influence, and potentially improve, substantive medical practice in the MSs too. ⁹³ Constituting a dialogue of sorts, the focus is not on eliminating differences between MSs, but on productive ‘cooperation’. ⁹⁴ This dialogue ‘connects the many’ healthcare systems ‘without merging them into one’ or abridging MS sovereignty, to borrow the words of Nicolaïdis from a separate context, ⁹⁵ since this comparison still operates within the limits of national benefits lists drafted by each MS. Accordingly, the informational exchange stemming from this comparison duty could improve patients’ rights both ‘domestically and cross-border wise’. ⁹⁶

Some additional context from Elchinov is necessary to illustrate what is meant by the second duty of inclusive interpretation. Mr Elchinov suffered from eye cancer. ⁹⁷ Bulgaria's enucleation treatment demanded the complete removal of the eyeball to destroy the cancer, whilst the German clinic utilized less-invasive proton therapy. ⁹⁸ One basis for refusing his application was that proton therapy was neither explicitly mentioned in Bulgaria's national benefits list, ⁹⁹ nor technologically available in Bulgaria at the time. ¹⁰⁰ Mr Elchinov's choice was simple: lose an eye, or keep it.

MSs may draft their benefits lists howsoever they wish, either by listing treatments ‘precisely’ or delineating categories ‘more generally’, so long as EU law is respected in exercising this discretion. ¹⁰¹ Decisions on whether foreign treatments fall within generic categories must be based on ‘objective and non-discriminatory criteria’ in light of all the ‘relevant medical factors’ and all the ‘available scientific data’, and considering whether the foreign treatment ‘corresponds’ to those categories. ¹⁰²

The CJEU rejected arguments that since the more advanced treatment was neither available nor specifically mentioned it could not be covered. ¹⁰³ Bulgarian legislation outlined a generically-formulated category in its benefits list covering ‘other operations on the eyeball’. ¹⁰⁴ Proton eye therapy clearly met this description. ¹⁰⁵ Making distinctions based on what was practically common in one's MS – when domestic law made no such distinction – unduly restricted the cross-border healthcare right's scope.

Under the inclusive interpretation duty, therefore, national authorities must look beyond the methods physically used in that MS, considering whether foreign treatments sought by patients correspond to the domestic benefits list as drafted and, if so, grant authorization when no domestic treatment is ‘equally effective’. ¹⁰⁶

Despite the German treatment's obvious superiority insofar as it was less invasive, there is one argument that both treatments were comparable regarding the ultimate objective of removing the cancer. It might therefore be objected that Elchinov constrains MS power to refuse authorization if ‘equally effective’ treatments were available domestically. ¹⁰⁷ Nevertheless, this finding is hardly novel. Although not mentioned in Elchinov, this outcome aligns with the pre-SSR Pierik decision, where it was held that the obligation to grant authorization where ‘equally effective’ domestic treatment is unavailable extends to treatment which is ‘more effective’ than that of the home MS. ¹⁰⁸

It still, of course, remains true that EU law ‘in no way’ affects the power of each MS to define the material scope of its own national benefits list. ¹⁰⁹ The interpretative duty simply requires national authorities to interpret their own legally-defined benefits categories in a free movement-friendly manner without distorting those categories’ wording. If a MS willingly exercises its legislative discretion to draft its categories using generic, broad-brush language, then it would be counter-intuitive and discriminatory to exclude foreign treatments simply because they were not explicitly spelt-out, since the very purpose of generalized categories is to ensure patients do not lose out on medical innovation because of linguistic inflexibility. ¹¹⁰ This inclusive interpretation duty therefore brings cross-border patient entitlements into alignment with Article 35 CFREU's ‘right of access’.

This duty may potentially improve domestic access too. Indeed, if foreign treatments are linguistically accepted within domestic benefits categories, this arguably raises the question about accepting those treatments at home. ¹¹¹ The prospect of this reflexive impact upon domestic practice, and of potentially higher financial burdens, might push MSs to narrow their benefits lists by including only low-quality or rudimentary treatments. However, this could undermine the PRD principle of ‘access to safe and high-quality cross-border healthcare’ ¹¹² and shun the MS's responsibility to facilitate such access. ¹¹³ As such, an unduly restrictive approach to drafting benefits lists could breach the PRD. ¹¹⁴

Even were this point rejected, reality proves that Elchinov has not led MSs to debase treatment quality. Government proposals in the Netherlands to scale back covered treatments were opposed on the very ground that this might breach the PRD, and that insurers should not be empowered to determine which treatments were ‘good enough’. ¹¹⁵ Contrastingly, despite Poland having transposed the PRD to minimize cross-border authorization costs by imposing application formalities, these changes have not reduced the effectiveness of treatments. ¹¹⁶ Therefore, the interpretative duty could in certain cases improve the quality of care available to cross-border patients without diminishing MS prerogatives, supplementing the patient's ability to ‘benefit’ from treatment within Article 35 CFREU's meaning.

D. Territorial availability and resourcing

One cannot ‘access’ something that is unavailable or that does not exist. Moreover, patients cannot meaningfully access ‘healthcare’ if resources are insufficient to achieve safe results. The CJEU has addressed these availability and resourcing points such that if a home MS includes a treatment on its benefits list, that treatment must either be supported by adequate resourcing in at least one hospital in home territory, or else cross-border authorization becomes mandatory under Article 20(2) SSR or Article 8(5) PRD. Some context from Petru is necessary before examining this dimension further.

The Romanian applicant was admitted to hospital to receive open-heart surgery. ¹¹⁷ Doubting that the local infrastructure and supplies were adequate for this, she applied for treatment in Germany instead, alleging that ‘medication and basic medical commodities were lacking’ and that ‘the number of beds was insufficient’. ¹¹⁸ Without authorization, she travelled to Germany and bore the costs upfront, with her reimbursement request subsequently being refused. ¹¹⁹ This refusal was based on how nothing in the patient's notes indicated that a lack of supplies might render the procedure impossible to provide. ¹²⁰ As such, the CJEU's analysis was inherently somewhat hypothetical, examining what EU law would require if Ms Petru's complaints were well-founded.

The preliminary reference asked whether authorization was mandatory if supply-based or infrastructural deficiencies adversely affected the ability to deliver that treatment in good time, even if doctors were able to provide it in a narrow, technical sense. ¹²¹ Noting that the SSR's predecessor ¹²² did not distinguish between reasons why treatments might not be available in good time, both the AG ¹²³ and CJEU recognized that a ‘lack of specific equipment or particular expertise’ could render a treatment's timely provision impossible. ¹²⁴ This rightly equated inadequacy of resourcing with unavailability. ¹²⁵

Regarding this dimension's first aspect, namely territorial availability, Petru clarified that if MS benefits lists cover particular treatments, and insured persons require one of those treatments, that treatment must be available domestically or else authorized abroad. ¹²⁶

Some have suggested that the CJEU thereby sweepingly decreed that listed treatments should be readily-available nationwide, impinging upon MS competence for resource allocation. ¹²⁷ That suggestion, though, is misguided. When the CJEU remitted the final decision back to the Romanian authorities, it said they could deem treatments available if accessible ‘in another hospital establishment in Romania.’ ¹²⁸

MSs are therefore not forced to shoulder the expense of facilitating listed treatments everywhere in their territory, but to ensure that they are actually provided somewhere to avoid having mandatorily to grant authorization. ¹²⁹ This patently safeguards ‘access’ to healthcare both at home and abroad. Since the source of this territorial availability obligation is the very same benefits list drafted by the home MS itself, this reflexive improvement of patient access is not a transgression of MS competence, but rather an expression of that MS's competence. Thus, this obligation aligns with the Charter's subjecting of its healthcare right to ‘conditions established by national laws’. ¹³⁰

Regarding this dimension's second aspect, Petru recognized that for treatments truly to be domestically available, MSs must meet a substantive minimum of provisioning, as opposed to presuming a treatment's existence simply because it is listed. ¹³¹ This resource-sufficiency assessment, Petru recognized, is for national authorities to undertake. ¹³²

AG Cruz Villalón seemingly harboured reservations about the financing of healthcare systems and EU competence. He contrasted ‘occasional and temporary’ deficiencies in a ‘particular’ hospital with ‘structural and prolonged deficiencies’ across a MS, proposing a new distinction whereby national authorities would only need to issue authorization in the former scenario. ¹³³ Unlike the aforementioned discrepancy between the AG and CJEU's analysis in A, here AG Cruz Villalón was proposing the introduction of a new conceptual distinction into the law, whereas in A the AG simply reiterated the importance of factors which had long been recognized as important in the prior case law. The CJEU's omission to take up this novel distinction in its judgment could arguably therefore mean it was implicitly rejected. The rejection of this distinction, which was based essentially on financial concerns, could consequently be regarded as giving carte blanche to patients from comparatively poorer MSs using the SSR or PRD to access treatment in better-resourced countries, increasing both the home and host MSs’ financial liability. ¹³⁴

Notwithstanding these ‘social tourism’ concerns, ¹³⁵ Commission reports show that patient movement under the SSR and PRD remains low, the reason not being MS stringency in refusing applications, but rather a low number of claims. ¹³⁶ This should allay fears of unmeritorious patient migration, as should the fact that in any event PRD-based reimbursements represent a negligible average of 0.01% of national healthcare spending. ¹³⁷

Even so, this resourcing obligation cannot be said to infringe national healthcare competence. Article 168 TFEU ‘does not…exclude the possibility that the Member States may be required’ under EU legislation to adjust their social security systems in ways which are compatible with their ‘sovereign powers in the field’. ¹³⁸ It is therefore ‘already established’ that MSs can be affected this way. ¹³⁹ The ‘main concern’ with this competence limitation was to preserve MS financial power over national healthcare systems, ¹⁴⁰ and indeed this objective is still met. Although EU law expects MSs to meet a minimal resourcing threshold, the treatments for which this expectation applies are determined by the benefits lists which the MSs alone are entitled to draft.

Of course, the question then becomes whether MSs might dodge costs by axing entitlements. However, since the PRD's implementation period ended, MSs have not reportedly responded by removing treatments from the basket of care altogether. Even where MSs did seek to limit demand for care, this was not done by curtailing benefits lists, but rather by clarifying the domestic criteria to qualify for certain treatments. ¹⁴¹

Regarding the broader rights-based logic emerging here, Hatzopoulos commented on Petru, saying that despite his objections to the CJEU's reasoning, invoking Article 35 CFREU would have given the Court’s conclusion a ‘more solid’ or ‘at least palpable’ basis. ¹⁴² Part of the reason why the Charter could bring more doctrinal coherence to the patient mobility case law is because in real terms, Petru supplements the ‘access’ and ‘benefit’ themes alluded to in Article 35 CFREU.

E. Equality of access and patient choice

Riedel once posited that although not being written down, Article 35 CFREU arguably stipulates an equal ability to ‘access’ and ‘benefit’ from treatment, ¹⁴³ if Articles 20 and 21 CFREU on ‘equality’ and ‘non-discrimination’ were read across to cast light on other Charter provisions. This implicates the issue of what counts as an ‘implementation’ triggering the need to examine the Charter under Article 51 CFREU. In this vein, A clarified that refusals of authorization under Article 20(2) SSR and Article 8(5) PRD count as ‘implementations’ of EU law, thereby necessitating consideration of Article 21 CFREU. ¹⁴⁴ Riedel's theory was thus vindicated in the cross-border context. Importantly, this ‘non-discrimination’ element, alongside the distinction drawn in A between the distinct purposes of the PRD and SSR, has also highlighted the importance of patient choice in particular cases. ¹⁴⁵

Again, illustrating these points requires some factual background. In A, the son of the Latvian applicant, a Jehovah's Witness, needed open-heart surgery. Such treatment was available in Latvia and Poland, however Latvia's procedure involved a blood transfusion, whereas Poland's did not. The applicant requested prior authorization and SSR reimbursement for the Polish treatment. The Latvian authorities refused this because aside from the methodological difference regarding the transfusion, both operations were equally effective and could be delivered equally quickly. ¹⁴⁶ The question then became whether this refusal, which sidelined the ethical importance to the applicant of not using donor blood, would infringe the cross-border healthcare right in light of Article 21 CFREU. ¹⁴⁷ The decision produced three significant outcomes for patient choice and non-discrimination in relation to patient ‘access’.

First, despite the Latvian government arguing that the PRD was irrelevant since the applicant only applied under the SSR, ¹⁴⁸ the Court found ‘a request for full reimbursement under Regulation No 883/2004’ to ‘implicitly but necessarily’ contain a request for PRD-based reimbursement. ¹⁴⁹ This makes sense, as the two instruments are undoubtedly ‘complementary’. ¹⁵⁰ The linguistic alignment between the PRD and SSR, noted in section 2.B, indicates this. Moreover, if patients claim full SSR reimbursement, they would be unlikely to refuse PRD reimbursement, even if it is more limited. This is not revolutionary, given Kohll's finding that the applicability of Regulation 1408/71 did not exclude the applicability of the Treaty-based freedom of services, from which the PRD drew. ¹⁵¹ This development protects patient choice in, and access to, treatment by preventing applications from being invalidated in this overly-formalistic way.

Regarding A's second outcome, despite that case denying the need to consider the patient's ‘personal choices as regards medical care’ in a primarily medical assessment, ¹⁵² the finding that authorization refusals ‘implemented’ EU law was significant to patient choice insofar as this implementation demanded the combining of PRD and Charter considerations. ¹⁵³ Although the Latvian authorities had not directly discriminated against the applicant based on his faith, ¹⁵⁴ the refusal did so indirectly because it ‘implicitly forced him to renounce his religious beliefs’ as a Jehovah's Witness – either he contravened his values by accepting a transfusion domestically, or he sought treatment abroad without reimbursement. ¹⁵⁵ Latvia had treated him identically to other patients ‘who do not need their method of treatment to be adapted’. ¹⁵⁶ This indirect discrimination required a justification in order to comply with EU law. ¹⁵⁷

Under the SSR, the scope for justification was wide owing to the ‘financial balance’ legitimate objective, since any additional costs might be ‘difficult to foresee’ if home MSs had to consider a patient's forum internum when assessing applications. ¹⁵⁸ This certainly ‘sweetens the bitter pill’ from the MS perspective. ¹⁵⁹ Contrastingly, since PRD-based reimbursement would never exceed home MS tariffs or the treatment's actual costs, ¹⁶⁰ subjective choices based on the patient's forum internum would not generate unpredictable or heightened burdens, rendering the ‘financial balance’ defence unavailable when discriminatorily refusing authorization under Article 8(5) PRD. ¹⁶¹

Simply put, home MSs must justify both their refusal and any resultant discrimination or other negative effect for another fundamental freedom, if applicable, meaning the prospect of discrimination supports the grant of authorization. Insofar as the PRD is concerned, patients are no longer torn between the fictitious ‘choice’ of deciding between ethically-incompatible treatments at home and acceptable but costly treatments abroad. ¹⁶² Indeed, A reinforces AG Hogan's observation that the PRD is premised upon the ‘primacy of patient choice’. ¹⁶³ By framing patients’ cases through fundamental rights, A expands the scope for accessing and benefitting from cross-border treatment.

The final significant feature of A is that its judgment's structure takes a ‘fundamentally different’ form compared with ‘regular’ patients’ cases, ¹⁶⁴ involving the visible addition of a Charter right-based hoop through which the Latvian insurer had to jump to justify its refusal. ¹⁶⁵

Precisely which Charter rights will be raised in each case is admittedly unclear. In A, only Article 21 CFREU was properly analysed by the CJEU, although the AG's Opinion considered Article 10 CFREU on religious freedoms as well. ¹⁶⁶ In a sense, though, this discrepancy is arguably inconsequential, since addressing non-discrimination under Article 21 CFREU inevitably demanded mention of discrimination on the ground of ‘religion or belief’ anyway, for this text also appears in the non-discrimination provision. ¹⁶⁷ This implicitly suggests the relevance of both provisions. ¹⁶⁸

Furthermore, the CJEU left the door open to different Charter provisions applying in future cases. On a textual reading of A, refusing authorization triggers the need to respect the Charter, ‘inter alia’ Article 21 thereof. ¹⁶⁹ Home MSs must therefore consider other Charter provisions should the need arise, though the CJEU perhaps felt unable to here due to the jurisdictional limits of preliminary references precluding guesswork about future cases. ¹⁷⁰

Accordingly, appropriating the Charter as an analytical lens ‘significantly strengthened’ patient access to cross-border care. ¹⁷¹ Although Article 35 CFREU was not mentioned, the use of other Charter provisions to widen access to cross-border care nevertheless resonates with its broad language of ‘accessing’ and ‘benefitting’ from treatment. Nor, as explored in section 3.B, does the invocation of those other Charter rights necessarily occupy so much bandwidth in a cross-border case analysis as to completely preclude Article 35 CFREU from also playing a contributory role.

F. Where does this leave us?

Despite conceptually overlapping, these four dimensions make distinctive contributions to the cross-border healthcare right. The first dimension regarding the patient need assessment has facilitated ‘access’ by requiring procedural assessments of the medical justifiability of refusing authorization to account for the patient's interests beyond purely medical factors.

By contrast, the second dimension on effectiveness expands ‘access’ by influencing the interpretative and comparison procedures to be followed in determining whether foreign treatments are covered under domestic benefits lists, meaning this affects a different condition for the mandatory grant of authorization compared with the first dimension. This second dimension goes beyond ‘access’, facilitating access to better-quality treatments abroad than might be available domestically, all while reflexively improving domestic healthcare too. As such, the patient's ability to ‘benefit from’ treatment, expressed in the Charter, has also been strengthened.

Like the first two dimensions, the third dimension on availability and resourcing relates to whether covered treatments can be provided in good time. However, it differs in terms of how it expands access to quality healthcare by clarifying the precise relationship between the provision of treatment at home and the obligation to authorize treatment abroad. In this sense, the third dimension supplements the cross-border healthcare right both procedurally and substantively.

The fourth dimension on equality and choice assists patients where application refusals would bring about the consequence of discrimination. By placing the onus of justifying potential discrimination upon the MSs, the perspective has moved from requiring domestic authorities only to consider the implications of granting authorization for national coffers, to also considering the implications of refusing authorization for patients. Patients’ interests are thus elevated at the justificatory stage, after the considerations of medical justifiability and benefit list interpretation occur in line with the first three dimensions. Expanded ‘access’ to and an ability to ‘benefit’ from cross-border care follow from this.

Article 35 CFREU's two elements are thus mirrored de facto in the cross-border healthcare right. The discussion now turns to consider precisely how recognizing Article 35 CFREU de jure in the case law could further shape intra-EU patient mobility, to give real meaning to the Charter's promise.

A. The rights-principles distinction: Does it matter?

Not all ‘fundamental rights’ have the same degree of ‘fundamentality’. Under Article 51(1) CFREU, Charter ‘rights’ must be ‘respected’, whereas Charter ‘principles’ must merely be ‘observed’. Principles therefore cannot give rise to ‘direct claims for positive action’ from EU institutions or MS authorities, and only become relevant when EU law is being ‘implemented’ or when domestic courts interpret national laws based on EU law. ¹⁷³

Despite the Charter Explanations stating that Article 35 CFREU only contains ‘principles’, ¹⁷⁴ the status of this ‘right to healthcare’ remains contested. Lock asserts that Article 35 CFREU's wording indicates the existence of a right, ‘despite’ the Charter Explanations. ¹⁷⁵ Barnard also suggests that in certain circumstances the CJEU is increasingly recognizing the Charter's ‘Solidarity’ chapter provisions, one of which is Article 35 CFREU, to contain ‘rights’ despite their traditionally having been seen as ‘principles’. ¹⁷⁶ Contrastingly, following Hepple's distinction between ‘clear’ rights, rights meriting respect and ‘pure objectives’, ¹⁷⁷ Hervey doubts that the simple use of rights-based language in Article 35 CFREU suffices to make it a ‘right’. ¹⁷⁸

Again, Article 35 CFREU has never been employed as a substantive right. ¹⁷⁹ Notwithstanding how in Stamatelaki the AG framed this healthcare right as a ‘personal entitlement, unconnected to a person's relationship with social security’, ¹⁸⁰ the CJEU in that case abstained from mentioning it. The applicant and Commission in Petru also putatively invoked Article 35 CFREU, the latter suggesting that ‘in the light of…Article 35’, chronic resource shortages could necessitate SSR-based authorization. ¹⁸¹ Again, though, the CJEU omitted to analyse it. Instead, this provision is usually balanced against other fundamental rights ¹⁸² or – importantly – as a weighty factor in proportionality assessments when justifying restrictions to free movement under internal market legislation. ¹⁸³ This probably fixes this provision as a mere ‘principle’.

However, this does not mean Article 35 CFREU has no potential to impact cross-border healthcare. As Lock observes, just because ‘principles’ cannot confer claim-rights does not strip them of all normative content; since MSs and EU institutions must ‘observe’ principles, state actors clearly bear a ‘one-sided…duty’ which is ‘non-relational’ insofar as no individual right corresponds to it. ¹⁸⁴ As such, the ‘access’ and ‘benefit’ principles could be a significant ‘touchstone’ by which MSs must measure their conduct when implementing EU law, ¹⁸⁵ for instance when handling cross-border applications. While not giving exercisable rights, this one-sided duty to observe these principles might nevertheless give patients reflexive benefits. ¹⁸⁶

Regarding Article 35 CFREU's potential applicability, it is generally accepted that potential approaches range from ‘minimum core’ options to ‘reasonableness’ assessments. ¹⁸⁷ Using this distinction, two means shall be proposed for how Article 35 CFREU could suitably be placed on a more substantive footing. One option is using this provision as an ‘aid-in-analysis’ following the ‘minimum core’ approach, whereas a second option involves a ‘proportionality’ assessment where Article 35 CFREU's principles would be weighed by national authorities examining the justifiability of particular decisions on patients’ applications.

B. Article 35 CFREU as an aid-in-analysis: A ‘minimum core’ approach

Given how A left open whether other Charter provisions might be relevant in future litigation, ¹⁸⁸ Article 35 CFREU's ‘access’ and ‘benefit’ principles might have the potential to affect the analytical structure adopted in patients’ cases, either indirectly or directly.

By indirect influence, it is meant that Article 35 CFREU could influence the interpretation of other Charter interests at stake in a given patient's case. Using A as an example, whereas the main Charter issue was whether the patient had suffered discrimination under Article 21 CFREU, an alternative analysis might look at whether this patient's ability to ‘access’ cross-border care under EU legislation, or properly to ‘benefit from medical treatment’, had been adversely affected by virtue of this discrimination. This would essentially combine what might be termed a ‘primary’ set of Charter considerations with a ‘secondary’ set of considerations. Other potentially relevant ‘primary’ Charter provisions which have not yet arisen, but could do, ¹⁸⁹ include the rights to life, ¹⁹⁰ to personal integrity ¹⁹¹ or to respect for private and family life. ¹⁹²

Such an approach would improve the jurisprudence from the patient's perspective in two senses. First, this approach would broaden perceptions of how different forms of restriction on cross-border mobility can affect ‘access’ and the ability to ‘benefit’ from treatment. Rather than pushing national review courts or the CJEU against domestic insurers’ interests, using Article 35 CFREU alongside more substantive Charter rights would allow them to be more alive to cases where the ‘access’ and ‘benefit’ principles are heavily eroded by a refusal, highlighting the need to seek a justification.

Second, it would serve a labelling function. Of course, for the applicant in A the main issue might have been religious creed rather than medical need. However, the patient's main concern is usually accessing healthcare itself, as Ms Petru's putative invocation of Article 35 CFREU shows. By more accurately reflecting the interest the applicant seeks to protect, national review courts may properly engage with the friction between that interest and countervailing MS interests, rather than framing it as a pure anti-discrimination or free movement issue. ¹⁹³

Of course, if the aim is to reflect healthcare as the interest at stake in patients’ cases, it is arguably artificial to apply Article 35 CFREU behind the curtain of other Charter provisions. It may therefore be preferable to frame these cases more directly within the ‘right to healthcare’ principles.

If instead Article 35 CFREU were to be used directly as an aid-in-analysis, this would involve MSs, when implementing EU law through handling applications, having to consider the extent to which a refusal would impair a patient's ability to ‘access’ or ‘benefit’ from treatment. Again, this gives no individually-exercisable subjective rights, though patients may still derive some benefit.

Under a direct aid-in-analysis approach, domestic review courts might hold authorization decisions not only against the metric of the potential impacts on MS expenditure or resource allocation, but also against the metric of the potential impacts upon patients.

Recalling A, if reimbursement were denied for the faith-compatible Polish treatment, the applicant would have had to elect between potentially unaffordable treatment abroad, or their son continuing to suffer a potentially fatal condition at home. In such cases, applying Article 35 CFREU would help reviewing bodies recognize that refusing all reimbursement, even if limited in the PRD sense, risks completely gutting the ‘access’ and ‘benefit’ principles by denying access to an otherwise affordable option, and risking the patient's well-being by forcing their values to be compromised. Indeed, MSs can hardly be said to ‘observe’ Article 35 CFREU if their decisions render its principles nugatory.

This, of course, requires that Article 35 CFREU's principles contain ascertainable content capable of being infringed. Nonetheless, based on her analysis of various national legal orders and international law, ¹⁹⁴ Toebes has suggested that there is normally a discernible minimum ‘core content’ involved in ‘rights to healthcare’. ¹⁹⁵ Several guiding themes inform what might fall into this ‘core’, including ‘equality’ in accessing healthcare services, alongside ‘quality’, ‘availability’ and ‘accessibility’ in financial and cultural senses, meaning that affordable health services ought to be available to people regardless of their cultural traditions, with measures taken to facilitate access. ¹⁹⁶ Notably, these themes closely map onto the four dimensions already discussed in section 2, indicating this approach's consistency with the current law. Moreover, identifying the ‘content’ of Article 35 CFREU's principles would not bestow claim-rights against MSs upon patients, but would simply facilitate observance of those principles, meaning this approach would not collapse Article 51 CFREU's distinction either.

This approach would also be compatible with EU competence. First, since patients would have no claim-right to financial resources for ‘accessing’ cross-border care, any extra allocation of resources coming from authorization would be made by MS authorities in individual cases when complying with their duty to ‘observe’ Article 35 CFREU's principles. This power to decide would remain with national decision-makers, upholding Article 168(7) TFEU's reservation of healthcare responsibilities to the MSs. ¹⁹⁷ Second, as explained in section 2.C, questions of ‘benefit’ or quality would be determined based on the domestic benefits lists using the inclusive interpretation duty, which itself respects MS prerogatives.

C. Proportionality assessments: A procedural ‘reasonableness’ review

An alternative is to deploy Article 35 CFREU's principles in a multi-factorial analysis at the justification stage for refusing authorization, under the PRD as well as the SSR. Analogizing Weatherill's analysis of fundamental rights in the EU internal market, integrating Article 35 CFREU into the ‘justification’ stage would permit decision-makers to make its ‘imprecisely’ formulated language more ‘concrete and context-specific’, ¹⁹⁸ potentially by drawing upon the themes discussed by Toebes and the cross-border right's current dimensions.

One motivation behind proposing this approach is that A's effect is to categorically preclude fundamental rights-based interests from competing with the ‘financial balance’ objective in cases of refusal. Of course, A does recognize the legitimacy of MS interests in defending the budgets of their social security systems, given how SSR-based authorization can generate extra costs for the home MS. ¹⁹⁹ However, deeming interferences with the fundamental non-discrimination right justifiable due to the extra costs associated with SSR-based authorization, unlike relatively-costless PRD-based authorization, ²⁰⁰ implies that the supposedly ‘fundamental’ right to non-discriminatory access to cross-border care has a price.

Interests like the general ideal of equality, or indeed access to quality healthcare, are by no means absolute and must frequently be balanced against other societal interests; however, the placing of a specific price upon these things is ‘undesirable’ insofar as it belittles or commodifies these purportedly fundamental interests. ²⁰¹ There is little information in A regarding precisely what SSR-based authorization there would have entailed costs-wise, however for the CJEU this was seemingly irrelevant. A implies that any cost increase for home MSs suffices to invoke the ‘financial balance’ justification and deny authorization under the SSR.

To avoid categorically ranking fundamental rights beneath the MS interest in maintaining the financial balance of their healthcare system, Article 35 CFREU's principles could be used by national authorities as part of a balancing exercise in determining the justifiability of refusing applications in individual cases. Essentially, this would involve asking whether refusals would strike a proportionate balance between MS interests and the patient's reflexive Charter-based interests, based on the probable extra cost of authorizing treatment in that particular case. This would effectively be a procedural ‘reasonableness’ review, ²⁰² carried out by the national authorities.

Arguably, this proportionality assessment still runs into the problem of ‘commodifying’ EU fundamental rights, since domestic decision-makers would have to balance the extra costs arising from SSR-based authorization with Charter interests. Ultimately, to resolve any case, one side or another must win. ²⁰³ However, this would not purely be a narrow ‘pricing’ exercise as under the current law.

Indeed, in all patients’ cases the factors which MSs may assert against authorizing access to cross-border care are more varied than the purely economic, going beyond the ‘financial balance’ justification to include hospital ‘planning’, ensuring sufficient access to a balanced range of quality care for other patients, and avoiding wastage of technical and human resources. ²⁰⁴ These justifications are not mutually exclusive, so elements of each objective may factor into a MS's refusal of authorization.

The existence of these non-economic justifications shields this ‘proportionate balance’ proposal from accusations of putting a hard-and-fast price on Charter interests, since the balance would consist not solely of the patient's access to treatment as against the cost of authorizing treatment, but instead between the patient's interests on the one hand, and on the other hand the financial aspect alongside society's non-pecuniary interest in having a well-functioning hospital system. This balancing approach simply assesses in a more nuanced way the justifiability of refusing applications, avoiding the current approach's automatic subjugation of Charter rights by a MS's financial interests.

In any event, this would be a factual decision for home MS authorities to make, in line with Article 168(7) TFEU, and given that the power to allocate healthcare resources is normally left with national authorities anyway under that provision, home MS decision-makers would be well-versed in making this sort of proportionality assessment. Not only this, but the competence-compatibility of this suggestion becomes even clearer when it is recognized that due to the inherent sensitivity of balancing such interests, EU law in other areas normally affords national authorities a ‘wide margin of discretion’ in considering all the case's circumstances to assess whether a given course of action would fairly balance those interests. ²⁰⁵

True, if MSs are made to consider the proportionality of the effects of refusing authorization, this might in certain cases assert individual patient entitlements over the collective solidarity principle, since cross-border patients could thereby access healthcare abroad with greater frequency, influencing the resources available in both the home and host MSs. ²⁰⁶ However, since national decision-makers would still have discretion to balance the competing interests, the solidarity principle may not actually be eroded. Indeed, by giving decision-making power to the national authorities, who represent the social community at large, a grant of authorization by such bodies cannot be said to undermine the solidarity of that same social community.

Furthermore, this approach would acknowledge that, as Neergaard notes, whereas solidarity does indeed underpin all MS healthcare systems, solidarity nowadays exists alongside other values, with different principles like ‘non-discrimination’, ‘equality’ and ‘access to essential services’ also requiring fulfilment in contemporary society. ²⁰⁷